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UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

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Page 1: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

UNDERSTANDING THE NONMANUFACTURER RULE(NMR)

U.S. Small Business Administration

Office of Government Contracting

FY 2014

Page 2: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

The Nonmanufacturer Rule Program

Applies to firms that receive supply contracts, above $25,000, under the 8(a) program or on a small business set aside, who can be either a manufacturer or a nonmanufacturer of a product;

A nonmanufacturer who receives one of these contracts must agree to supply the product of a domestic small manufacturer or processor;

SBA can waive this requirement;

Once a waiver of the manufacturer rule is approved, a firm may supply the product of a large manufacturer.

Page 3: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Overview•Key Definitions•Regulations, Laws•Applicability•Waivers•Best Practices

Page 4: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Definitions

•Manufacturer•Nonmanufacturer•Kit Assembler•Reseller•Wholesaler

Page 5: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Who is a Manufacturer?

A manufacturer is a concern which, with its

own facilities, performs primary activities in

transforming inorganic or organic

substances, including the assembly of

parts and components, into the end item

being acquired.

Page 6: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Who is a Nonmanufacturer?A concern may qualify as a small business

nonmanufacturer if:

• Less than 500 employees;

• Primarily engaged in retail or wholesale and normally sells type of product being supplied;

• Takes ownership or possession of the item(s) with its personnel, equipment or facilities in a manner consistent with industry practice; and

• Will supply the end product of a small business manufacturer or processor made in U.S. or obtain waiver to non-manufacturer rule

Page 7: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Who is a Kit Assembler?When the manufactured item being acquired is a

kit of supplies, or other goods provided an offeror for a special purpose, the offeror cannot exceed 500 employees, and 50 percent of the total value of the components of the kit must be a small business under the size standards for the NAICS codes of the components being assembled.

The offeror doesn’t need to be the manufacturer of any items assembled

Page 8: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Who is a Retailer? Wholesaler?

Retailer -- a person who is authorized to sell someone else’s goods and/or services

Wholesaler -- An intermediary (go-between) which sells to other intermediaries, such as a firm that buys from a manufacturer and sells to a retailer

Page 9: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Regulatory Requirements

The regulations that govern the NMR:

Federal Acquisition Regulation (FAR) Part 19› FAR 19.001 et seq. - Definitions› FAR 19.102 Size Standards› FAR 52.219-1(a)(3) - Provision

Code of Federal Regulations (CFR) 13 CFR› 13 CFR § 121.406 – The Rule › 13 CFR § 121.1202 et seq. - Waivers› 13 CFR § 125.15 – SDVO Set-Asides› 13 CFR § 127.505 – WOSB Set - Asides

Page 10: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Summary of CFR regulations

• SBA size regulations 13 CFR 121.103(h)

• HUBZone regulations 13 CFR 126.616

• SBA Certificate of Competency 13 CFR 125.5

• Service-disabled veteran 13 CFR 125.15(b)

• 8(a) and SDB regulations 13 CFR 124.513

• Small disadvantaged business 13 CFR 124.1002(f)

• WOSB Program 13 CFR 127

• SBA Prime Contracting 13 CFR125.2

• SBA Subcontracting 13 CFR125.3

Page 11: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Below the SAT

Small business set asides are mandatory for the acquisition of supplies and services valued from $3,000 to $150,000

FAR permits but does not require the reservation of an award of a contract with a value less than the SAT to different types of small businesses such as 8(a), HUBZone, WOSB, SDVO SBCs

Interaction of Small Business Programs

Page 12: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Above the SAT

• SBA’s regulations provide for parity among certain small business programs

• KO will determine which set-aside program to use

Interaction of Small Business Programs

Page 13: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Analysis: Regulatory Applications

Page 14: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Applicability of the NMR

• Small business set-asides on supply contracts, orders, BPAs over $25k

• The NMR will be applied when a small business nonmanufacturer will provide the end item of:• a small business manufacturer• an other than small business manufacturer under a waiver

(an existing class waiver or individual –or solicitation specific-waiver)

• Does not apply to full and open solicitations

Page 15: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

When the NMR does NOT apply

There are NO waivers to the NMR for:

Service or construction contracts

HUBZone Contracts

NAICS codes outside of sector 31-33, Manufacturing

Page 16: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Choosing NAICS CodesThe North American Industry Classification System

(NAICS) code chosen must be that which best describes the principal purpose of the product or service being acquired

Procurements for supplies must be classified under the appropriate manufacturing NAICS code, NOT under the wholesale or retail trade NAICS code. 13 C.F.R. § 121.402(b)

SECTORS 42, 44 and 45 ARE NOT TO BE USED FOR GOVERNMENT PROCUREMENT OF SUPPLIES

Page 17: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Applying NAICS Codes to Acquisitions

The KO designates the size standard of the procurement by selecting the size standard in effect on the date the solicitation is issued.

The basis for designation NAICS that best describes the goods or services that are going to be procured.

SBA's size regulations pertaining to federal procurement are also found in the Federal Acquisition Regulation, 48 CFR part 19.

To bid on a federal contract, a concern must self-certify that it is a small business under the appropriate size standard in the solicitation.

Page 18: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Applicable Size Standards-NMR

A small business nonmanufacturer must meet size standards that apply to acquisitions covered by the NMR.A small business nonmanufacturer (500 or less

employees) will provide the end item of: a small business manufacturer (as regulated by SBA’s Table of

Size Standards 13 C.F.R. § 121 whether the size standard is 500 employees or not)

an other than small business manufacturer under a waiver

The size standard for a nonmanufacturer is 500 or less employees. In any case, a small business nonmanufacturer cannot exceed 500 employees.

Page 19: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Waivers to the NMRTwo types of waivers

Class Waiver

Individual Waiver

Page 20: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Class Waivers to the NMRA class waiver applies to all items in a class of products.

Class waivers apply to categories of items and continue in effect unless revoked by SBA.

A waiver of the NMR for classes of products has no time limitation or duration.

Any government agency, business association, or interested party may request a waiver for a class of products.

Discovery of even one small business manufacturer for a single item in the class will justify denial of a request for a class waiver.

Page 21: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Four steps in checking “NMR” class waivers

1. NAICS code

2. Product description

3. Product service code at http://www.acquisition.gov/

4. Federal Register, where SBA communicates “NMR” changes

Page 22: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Individual Waivers to the NMRSBA will consider granting in individual waiver when a KO

determines no small business manufacturers exist to meet requirement

The waiver to the NMR on an individual procurement is provided for in Section 8(a)(17) of the Small Business Act.

An individual waiver is narrowly applied to select contract line item numbers (CLINS) for a specific solicitation.

A NMR Waiver must be in place prior to receipt of offers in order for a nonmanufacturer to qualify as a small business for set-aside purposes.

Page 23: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

How to Obtain an Individual Waiver

• 13 C.F.R. 121.406 and 121.1202 - 1204

• www.sba.gov

• The basis of granting an individual waiver rests on the market research presented with an agency’s request to justify the claim that no small business manufacturers exist that can meet the procurement requirements

Page 24: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

What to Submit• Using an SBA NMR request template, submit the following:• NMR request on Agency letterhead, signed by a KO

• Include elements of SBA’s requirements (FAR has limited guidance)

• Market Research report or memo as an attachment• Market research should be based on search for SB manufacturers

using the NAICS code for the solicitaion

• Supporting documentation or copies of:• FBO Sources Sought / RFI / Vendor Survey including a summary of

findings• Brand Name Justification for brand name items• DSBS search results (don’t search for name brands, use generic terms

and remember to search on the NAICS code used for the solicitation)• Internet searches (Google, Thomasnet.com, etc.)

Page 25: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

What to Submit, cont.

• List of items to be waived – provide specific information including multiple item requests

• Statement of Work is REQUIRED on contracts expected to exceed a total estimated value of $500,000

• Any other documents that you think would help in the analysis and determination that no small business can produce the end product

Page 26: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Identification of Small Business Sources on Multiple Item Request for a Single Solicitation (Individual Waiver)

• Each line item must identify whether the end product will be supplied by a small business manufacturer• CLINs• NSNs• SINs

• One waiver per solicitation

Page 27: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

How to Submit

• Submit NMR waiver requests and attachments to the NMR program email address at: [email protected]

• Use the solicitation number and agency abbreviation in the subject line – ex: SBA SBA123-14-Q-0001 Waiver Request

Page 28: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Analysis: Review for Completeness• Regulatory vs Program Requirements• Use the NMR Waiver Request template as a guide

Minimum Required DocumentsMinimum Required Documents NMR Request PackageNMR Request Package

Page 29: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Excellent “NMR” reference with size standard

You have a Waiver, Now What?

Page 30: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Excellent “NMR” reference with “LOS”

You have a Waiver, Now What?

Page 31: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Oops. Incorrect “4” NAICS code used

FBO Notices

Page 32: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Does the class waiver to the “NMR” apply?

Are they looking for resellers or dealers?

Class Waivers to the NMR

Page 33: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Market Research Recommendations

SBA’s Dynamic Small Business Search http://dsbs.sba.gov

FedBizOpps – Sources Sought results

Summary of event results, i.e. “Industry Day” etc.

Online product information

Acquisition history

SBA Procurement Center Representative (PCR)

FAR Part 10

Page 34: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Best Practices Plan ahead

Solid market research with supporting documentation

Communicate to contractors how the NMR is applicable to solicitations (FBO listings, etc.)

Communicate with the small business office to identify small business goaling needs or opportunities

Work with an SBA PCR - Small Business Coordination Record (Form DD 2579)

Use the right NAICS code for procurement of supplies

Page 35: UNDERSTANDING THE NONMANUFACTURER RULE (NMR) U.S. Small Business Administration Office of Government Contracting FY 2014

Questions?Nonmanufacturer Rule Program

Amy Garcia

Office of Contract Assistance

Office of Government Contracting

U.S. Small Business Administration

Washington, D.C.

[email protected]

202/205-6842